Full case report
Rufus v Elliott (CA)
Reference  EWCA Civ 121
Court Court of Appeal (Civil Division)
Judge McCombe and Sharp LJJ, Mitting J
Date of Judgment 20 Feb 2015
Defamation – Libel – Meaning – Capability
The Defendant, a former professional footballer, issued a press release explaining his decision to resign as a Kick It Out trustee. Kick It Out is an anti-racism campaign group, supported by the Football Association. The Claimant, also a former professional footballer, complained that with reference to an earlier newspaper article published in the Sun, headlined “A football anti-racism champion has sparked a race row after calling another black man “n*****””, concerning a row between the two men, who were previously friends and business colleagues, the Defendant’s press release implied that the Claimant had acted disloyally to the Defendant by making public a text message sent by the Defendant to the Claimant, which contained an extremely offensive word. The Claimant in fact denies that it was him who made the text public.
At first instance Dingemans J held that right-thinking members of society could take the view that disclosing a private communication to the public, with the inevitable consequence that a former friend would lose his office was both disloyal and wrong. He considered the press release bore the meaning that the Claimant had made the text public and was capable of being defamatory of him.
The Defendant appealed arguing that right-thinking members of society could not conclude that someone’s conduct was reprehensibly disloyal when it led to the public exposure of wrongdoing by another, in this case himself. Further he argued that since the conduct imputed to the Claimant was lawful it could not be defamatory to say that the Claimant had engaged in it.
Had the judge been wrong not to strike out the claim on the basis the words complained of were incapable of bearing a meaning defamatory of the Claimant.
Consideration of the “abritrium boni” or an “ethical benchmark” adds nothing to the current legal analysis of what is or is not defamatory. The answer depends in part on the attitude of society generally. It does not follow from the authority of Byrne v Deane  1 KB 818, that to say of a man that he put in motion the proper machinery for suppressing crime could not be defamatory of him, that “suppression of crime” can simply be equated with “freedom of expression on a matter of public interest”. There is no such bright line formula. Equally problematic is any attempt to link the notion of what is defamatory with what is lawful. While to allege that someone acted unlawfully would normally (save for trivial examples) defame him or her it is not the law that merely because conduct is lawful it cannot be defamatory of someone to say they engaged in it.
This is perhaps an unsurprising outcome given the solid reasoning of the judge below and the narrow scope for appealing a first instance ruling on the capability of words to carry a particular meaning or to be defamatory: see Jameel v The Wall Street Journal Europe Sprl  EMLR 6; Berezovsky v Forbes  EWCA Civ 1251; EMLR 1030 CA. Unless the matter now proceeds to the Supreme Court it is likely a trial will follow later this year.
Simon Smith, Solicitor, for the Claimant; David Price Solicitors and Advocates for the Defendant
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 3rd Edition of The Law of Privacy and the Media, published by OUP. Further details here.